J. K. Rowling Will Lose, and Here’s Why

First, these words are being written by someone who thought Hillary Clinton couldn’t win New Hampshire after she got emotional a few days before the primary.

Second, I have no right to be writing about J. K. Rowling’s legal affairs, given that a) I have never finished a Harry Potter novel; b) I don’t usually cover publishing news; and c) my first-hand knowledge of Rowling consists almost entirely of having twice seen her on the street in front of a Tesco supermarket when I was living near her neighborhood in Edinburgh.

Even so, I must say it: Rowling and Warner Bros. Entertainment will lose their lawsuit against RDR Books, the would-be publisher of a book based on the Harry Potter Lexicon Web site www.hp-lexicon.org, which went to trial this week in a federal court in Manhattan. Tim Wu, a law professor at Columbia University and copyright expert, made the best case I’ve read against her claims in an article in Slate in January www.slate.com/id/2181776/pagenum/all/#page_start. The gist of it is that while Rowling has many rights as an author:

“ … Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn’t. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be ‘recast, transformed, or adapted.’ But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she’s suing. The law has never allowed authors to exercise that much control over public discussion of their creations.”

Wu didn’t predict that Rowling would lose, only expressed the view that she should, but that doesn’t need to stop the rest of us, does it?

That’s all I have to say, except that a) the Tesco in EH 8 has excellent white Stilton with apricots and b) I did predict the winner of this year’s Pulitzer for fiction.

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Thanks for posting Tim Wu’s comments. It’s made me think about this case differently…Although, surely journalists discussing J.K Rowling’s work within their book review columns is completely different from another author and publisher profiting from her intellectual property?

It’s a bit of a test case really, isn’t it? The outcome of which will have an interesting impact on the brand extension market within the entertainment and publishing industry!

You’re right that book reviews are different in the sense that critics don’t profit from someone else’s intellectual property.

But a closer parallel might be the Cliffs Notes or Sparks Notes that students use. If Rowling won, it could stifle all kinds of things like that, which are now permitted under U.S. copyright law. And that could create a real mess (and, as you say, have huge effect on brand extensions). So the results — one way or the other — are going to be interesting …

I was surprised when I first learned of this lawsuit’s existence, and felt that it would never go anywhere. Aren’t there many “books about other books” on the shelves of every library and bookstore in the U.S., and undoubtedly most other countries, as well?

Once a book it out there, it seems that the concept of free speech would dictate that others may write ABOUT it, just not plagarize or profit from duplicating it. Correct?

Examples:

“Lembas for the Soul: How The Lord of the Rings Enriches Everyday Life” by Catherine Kohman

“The Lord of the Rings: A Reader’s Companion” by Wayne G. Hammond and Christina Scull

Exactly. There have been so many of those readers’ companions and concordances, you wonder what will happen if Rowling wins: Will the the companions no longer be allowed? Will the ones on the market have to be pulled?

In the end, it may boil down to the accuracy of Warner Bros statement that 97% of the proposed book is plagarized. Is this purported concordance merely a list of statements out of Jo’s books? And whether it is or not, does it contain speculations about the life and times of her characters before and after the time period of her books?

The primary event (other than the release of additional movies) the fans are waiting for is additional information about the characters and, should Steve Vander Ark provide this, he will have usurped and upstaged Rowling’s rights to the characters just as surely as “Rhett Butler’s People” would have infringed upon the GWTW copyright had their not been prior authorization.

Personally, I would like to see HP Lexicon in book form. I’m a big HP fan, and it would be nice to have an offline refence guide for the series. HP Lexicon is among the best.

What I don’t understand is how JKR can praise and promote HP Lexicon in its digital form, but at the same time condemn the same information in a print form. (HP Lexicon is one of the featured fan sites at JKR’s official website, http://origin.jkrowling.com)

From a legal perspective, how much difference is there between digital content and printed content of the same material?

Malcolm: Not sure I follow what you mean when you say that it matters whether the book contains speculation about the lives of the characters.

What’s wrong with speculation? If the book includes it, that would seem to work against Rowling — not for — because speculation is original material and not plagiarized.

DJM: JKR’s praise for the Web site (and her award to it) is baffling, isn’t it? She can’t say that the site doesn’t make money but the book would, because yesterday’s New York Times said that the HP Lexicon has been making a small amount (about $1,000 a year since its inception).
Jan

By speculation, I mean what amounts to fan fiction, in this case, creating events for the characters that are not part of the canon and that represent the use of another author’s schema for financial gain or fame.

You think that could hurt her? I can see how it might in, for example, fiction packaged to look just like a Harry Potter novel, but not if the comments appeared in a book of nonfiction.

The parallel that comes to mind is Margaret Mitchell’s heirs were able to keep people from writing sequels to “Gone With the Wind” (novels that speculated about what happened to Rhett and Scarlett). But critics, journalists and others could (and did) speculate about their fate in nonfiction.

GWTW is a good example. The two “sequels” we authorised by the copyright holder, while “The Blue Bicycle” was not and soon disappeared. Most observers think the estate authorised sequels they could somewhat control to upstage the ultimate sequels they could not control when the copyright ultimately expired. This, as the judge said, could go either way, and–not having seen the manuscript–one can only speculate about (1) how much (if any) represents directly lifted statements out of Rowling’s books, and (2) how much represents fan fiction elements.

Looks like we’ll have a couple of weeks to wait for the judge to decide.